Ohio woman seeks resentencing, arguing her 5-10-year plea bargain was a bad deal after a judge handed her 15 years behind bars instead.
Jasmine Fay was five days from trial and facing 31 years in prison for her role in a fentanyl overdose death when she cut a deal with Cuyahoga County prosecutors. She agreed to plead guilty to reduced charges and serve 5 to 10 years. Then the judge sentenced her to 15 to 20 years, making her new minimum 50 percent longer than the maximum she thought she was bargaining for.
“It’s a sentencing by ambush,” said Justice Michael P. Donnelly, former Ohio Supreme Court Justice and law professor at Cleveland State University College of Law.
The Shaker Heights woman’s defense counsel filed an immediate appeal with the Eighth District Court of Appeals, which held oral arguments in the case in August. That decision should be issued any day now. Legal scholars are closely following the case, as it could clarify what defendants can expect — or not — from the plea bargain process. Is a plea deal a promise the court is bound to keep? Or is it simply a suggestion the state is free to sidestep once a conviction is secured?
When Defendants Don’t Trust the Deal
Fay exchanged her right to trial in exchange for what she thought would be a 5-10-year sentence. But when the judge declined to honor the terms struck by prosecutors and the defense, that “bargain” turned out to be more of a gamble.
How plea bargains are handled is a matter of high stakes for nearly all defendants. According to the Innocence Project, an estimated 97 percent of all U.S. criminal cases are resolved in plea deals, as opposed to trial.
The idea behind plea bargains is simple: both sides exchange something of value for something they want. In criminal cases, defendants like Fay exchange the right to a trial by a jury of their peers, which includes the right to confront adverse witnesses and compel the State to prove its burden of guilt beyond a reasonable doubt. In exchange, prosecutors agree to pursue lower charges, reduced sentencing, or other favorable terms.
The problem, Justice Donnelly said, is that not every plea deal gives a defendant the same kind of certainty. Some defendants get a truly agreed sentence, one the court accepts in advance as binding. Others get only a jointly recommended sentence, a number the prosecution and defense agree to suggest to the judge, but that the judge remains free to ignore. In this case, the defendants do not actually have a bargain for they are often not clearly told that the number they are counting on is not actually a guarantee.
Well-established precedent in Ohio is that courts treat plea deals like contracts between the defendant and the state, and each side is supposed to get the benefit of what it bargained for. The idea traces back to a 1971 U.S. Supreme Court case, Santobello v. New York. There, the Court held that when a guilty plea rests in any real way on a promise from the prosecutor, that promise must kept. Ohio courts, including the one now hearing Fay’s case, have repeatedly said the same thing: ordinary contract law applies to plea deals.
Now, Fay is seeking cancellation of her sentence for either a resentencing within the agreed-upon range or the opportunity to allow her to withdraw her guilty pleas entirely.
She pleaded guilty in October 2025 to four felony charges connected to the 2024 overdose death of X-ray technician Stephanie Barath, 35, shortly after finishing a drug rehabilitation program. Prosecutors say Fay and Barath were friends. Fay began supplying Barath with heroin and cocaine not long after Barath left drug treatment. Prosecutors also say Fay was aware her supplier had cut these drugs with other dangerous narcotics. After Barath’s death, prosecutors charged Fay with involuntary manslaughter, drug trafficking, engaging in a pattern of corrupt activity, and corrupting another with drugs.
According to Cuyahoga County Clerk of Courts record, Fay’s 5-10-year plea deal was conditioned on her co-defendants pleading guilty to related felony charges. Within days of her surprise at sentencing in November 2025, Fay’s defense lawyer filed an appeal.
A decision by the Eighth Appellate District is expected soon.
The Deadly Drug at the Center of the Controvesy
According to the U.S. Drug Enforcement Administration (DEA), it is roughly 100 times more potent than morphine. As little as two milligrams, an amount smaller than a few grains of salt, can be a lethal dose. Because black market fentanyl is hand mixed, the dosage in a single counterfeit pill can range from a trace amount to more than five milligrams. For those making illicit purchases, that makes pinpointing a deadly dose nearly impossible.
Fentanyl’s Ohio death toll in 2024 — 2,022 — was more than the 904 total deaths from all illegal drug deaths combined in 2000, according to the Ohio Department of Health.
According to appellate records, Fay was an addict too. At her sentencing hearing, her defense attorney told the court Fay’s drug use had “consumed her life.” Her addiction worsened after her mother’s death. While she was in jail, she began taking suboxone, prescribed for opioid addiction.
Fay’s co-defendant, Robert Ferguson, was also Fay’s paramour at the time of Barath’s death. Prosecutors allege Ferguson ran a drug trafficking ring, which he continued spearheading after incarceration. Jail records show 221 calls between Ferguson and Fay in a single month, more than 150 of allegedly involving instructions for ongoing drug ring operations. Court records show that in a July 2024 recorded call, Fay told Ferguson about Barath’s death, noting Barath’s habit had escalated by then to the same levels it had been prior to drug treatment.
A Bargain or a Bait-and-Switch?
A Cuyahoga County grand jury indicted Fay in February 2025 on eight felony counts, including running a corrupt criminal operation, funding drug trafficking, and involuntary manslaughter.
At a pre-trial hearing five days before her October 2025 trial date, Fay accepted a plea deal. Judge Richard Bell, sitting in for Judge David Matia. In exchange for Fay’s guilty plea, prosecutors agreed to drop several charges and reduce others, ultimately decreasing the lower threshold of her sentencing to 5-to-10 years with no chance for early release. Judge Bell affirmed everyone’s agreement and understanding of those terms. He also affirmed Fay’s understanding that Jude Matia, who was originally assigned to Fay’s case, would ultimately oversee her sentencing.
What is disputed is whether Judge Bell clearly and directly informed Fay that the court was not bound by the terms of the plea bargain, and that the judge could choose a sentence above or below that range. Court records indicate he did say this. Specificially: “It would be his choice at the time of sentencing whether to follow the agreed recommendation or to pick a different number in the range [and enumerated] — 5,6,7,8,9 or 10.” He then walked her through the maximum possible sentence on each charge, telling her she could theoretically face as much as 31 years. Fay said she understood.
But on appeal, Fay argues the only time anyone mentioned the agreed-upon range during the sentencing hearing was her own defense counsel, who made a brief comment that the range was “5 to 10.”
In handing down a harsher sentence, Judge Matia noted the court’s findings:
- That Fay stepped in as the de factor leader of Ferguson’s drug operation while he was in jail;
- That Fay’s actions were directly responsible for Barath’s death;
- The she had limited education and lack of job skills
- That she was likely to reoffend.
Judge Matis sentenced Fay to 11 years for involuntary manslaughter, 4 years for corrupt operation, and 12 months on the remaining charge — up to 10 years, but a minimum of 15. According to court records, Fay’s defense attorney did not object at the time. But that was 5 years more than Fay anticipated when she agreed to the plea.
Fay filed her appeal Dec. 8, 2025.
“The Mere Suggestion of a Sentence the Trial Court Can Ignore”
Fay is not the first in Ohio to raise this question.
In 2024, the Ohio Supreme Court declined to hear an appeal in a case called State v. Leasure, out of Sandusky County. There, a defendant pleaded guilty in exchange for a jointly recommended sentence of eleven years total, only for the trial court to give him twelve instead, one year more than either side had asked for.
Justice Donnelly, still on the court at the time, dissented from the decision not to take the case, wrote that it was “a perfect example of the illusion” of a jointly recommended sentence. Unlike a truly agreed sentence, he said a recommended one gives up nothing real on the state’s side.
“There is no limitation on the defendant’s sentencing exposure. Nor is there any sacrifice by the state, beyond simply agreeing to suggest a possible sentence to the trial court.”
Donnelly, J., dissenting, Ohio Supreme Court
He added that when “a defendant gives up his constitutional rights to trial in exchange for the mere suggestion of a sentence that the trial court can ignore [while]. the defendant lacks any recourse because he ostensibly got what he bargained for.”
Then-Chief Justice Sharon Kennedy, siding with the majority in declining to review the case, cited the defendant’s own on-record affirmation that he understood the prosecturor’s recommendation was just that: A recommendation. It would not bind the court. If there was a broader question to answer, Justice Kennedy said, this wasn’t the right case.
Simillarly in 2023, a Portage County woman pleaded guilty to involuntary manslaughter in the death of her newborn. She accepted a plea deal for reduced sentencing. Here again, the court chose not to honor the terms of the deal, handing down a harsher sentence. Once again dissenting, Justice Donnelly wrote that the record left him unable to tell whether her plea had truly been informed and voluntary, because it was unclear whether the prosecutor and the defendant had ever actually agreed on the same thing.
Sorting Through the Sentencing Appeal
Fay makes several arguments on appeal.
First, she says her sentence broke a specific condition of her plea deal and denied her fair treatment by the court. The judge who conducted her sentencing, she says, should have been the same who accepted the plea. At the very least, the sentencing judge should have been reminded of the plea bargain terms.
The 5-to-10-years of prison time in exchange for her guilty plea, she argues, was mere suggestion:
“This deviation constitutes a breach of contract under Ohio law [which] stripped Ms. Fay of the benefit of her bargain.”
Jasmine Fay’s Appellate Attorney
If that argument fails, she alternatively argues that her trial attorney failed her by not clearly telling the sentencing judge that the 5-to-10-year range was a binding condition of the plea, and by not objecting once the sentence went beyond it. Her third argument is separate: that the record does not support the reasons the judge gave for making her serve her sentences back-to-back rather than at the same time.
The Cuyahoga County Prosecutor’s Office, meanwhile, denies the court broke any promise because Ohio law is clear: a trial court is not bound by a jointly recommended sentence. Therefore, a sentence that falls within what the law allows, backed by the required findings, is not improper just because it goes beyond what the parties recommended. Here, the State argues, Judge Bell told Fay in plain terms that the sentencing judge could give her up to 31 years, and that the court did not have to follow the recommendation. Ohio case law holds that this kind of warning, given before the plea is accepted, satisfies her right to fair treatment even if the eventual sentence turns out to be longer than what persuaded her to plead guilty in the first place.
Oral Arguments Show a Skeptical Bench on Both Sides
During oral arguments, Fay’s attorney told the panel that Judge Bell had spent more than half of the plea hearing walking Fay through her rights and the penalties she faced, but that when Judge Bell got to the agreed range itself, he told Fay she would receive a sentence “within that range” of five to ten years. Fay’s appellate lawyer told the panel that his client had only a seventh- or eighth-grade education. For someone with so little schooling, the court’s instruction, combined with her agreement to give up her right to a jury trial to plead guilty to some charges, amounted to a real promise, whatever the separate warning that the sentencing judge would not be strictly bound by it.
Further, her lawyer said everything traced back to his client giving up her right to a trial in exchange for what she reasonably understood to be a real, bargained-for range.
The State’s attorney argued that the “condition” of the plea was narrower than that: both sides had agreed only to argue for a sentence somewhere between 5 and 10 years at sentencing, which the State did, asking for 8 years. But no court would be bound to actually impose a sentence in that range. The State’s attorney walked the Eighth District panel through part of the plea hearing transcript, wherein Judge Bell told Fay the sentencing court could give her as much as 31 years and was not bound by the recommendation.
The panel gave no hint from the bench about how it plans to rule, thanked both attorneys, and closed the hearing without setting a date for its decision.
At oral argument, the State’s attorney argued that the panel should assume Judge Matia knew the agreed range, though no one confirmed it on the record at sentencing. He told the panel how, in his experience, judges learn the terms of another judge’s plea.
“The bailiff gets the plea offer in their email,” he said. “Bailiffs typically talk to their judges.”
He twice described this as “off-the-record stuff” and “typical practice,” not something the record shows happened in this case.
According to Fay’s brief, Judge Bell numbered the plea’s conditions at the plea hearing “so the record is clear.” Condition four was an agreed recommended prison sentence. Condition five set that sentence at 5-to-10 years.
The Eighth District will decide whether Judge Matia knew the agreed terms when he sentenced Fay.
No Trial, and Maybe No Recourse
At the heart of this case and others like it is a question that has already divided the Ohio Supreme Court: What does a defendant get when a plea deal is part of a jointly recommended sentence rather than a truly binding one? What happens when the number on which the defendant relied binds no one but the defendant?
The State insists the record shows the defendant knew this was an opportunity for a lighter sentence — not a guarantee.
Ultimately: Prosecutors get the conviction. The court is relieved of the time and expense of a trial. The defendant forfeits their constitutional rights based on terms to which they never agreed.
What’s Next
The Eighth Circuit’s three-judge appellate panel is expected to complete its review in coming days. Ohio’s courts of appeals do not work under a fixed deadline for a case like this one. Ohio Court Watch will provide an update when the court has issued its decision.
Sources Consulted
- Brief of Appellant, State of Ohio v. Jasmine Fay, No. 115904 (8th Dist. Ohio Ct. App., filed Apr. 22, 2026)
- Brief of Appellee, State of Ohio v. Jasmine Fay, No. 115904 (8th Dist. Ohio Ct. App., filed June 1, 2026)
- Oral argument audio/transcript, State of Ohio v. Jasmine Fay, No. 115904 (8th Dist. Ohio Ct. App., argued Aug. 25, 2026) (Otter.ai transcription; speakers identified only by number)
- Eighth District Court of Appeals, In-Person Court Calendar, week of Aug. 24, 2026 (appeals.cuyahogacounty.gov), listing Case No. 115904, State v. Fay, Aug. 25, 2026, 10:00 a.m., Courtroom #3, Panel: Calabrese, Laster Mays, Sheehan; Lower Court No. CR-25-699530-A
- U.S. Drug Enforcement Administration, “Facts about Fentanyl,” dea.gov/resources/facts-about-fentanyl (fentanyl potency, 2 mg lethal-dose threshold, and per-pill dosage variance in counterfeit pills)
- Santobello v. New York, 404 U.S. 257 (1971)
- State v. Wagner, 2024-Ohio-6182 (8th Dist.)
- State v. Huffman, 8th Dist. Cuyahoga No. 105805, 2018-Ohio-1192
- State v. Orlando, 2013-Ohio-2335 (8th Dist.)
- State v. Buchanan, 154 Ohio App.3d 250, 2003-Ohio-4772 (5th Dist.)
- State v. Darmour, 38 Ohio App.3d 160, 529 N.E.2d 208 (8th Dist. 1987)
- State v. Tucci, 2002-Ohio-6903 (7th Dist.)
- State v. Herman, 2024-Ohio-541 (9th Dist.)
- Strickland v. Washington, 466 U.S. 668 (1984)
- State v. Leasure, Ohio Supreme Court Case Announcements, Feb. 12, 2024 (2024-Ohio-476), declining jurisdiction over 2023-Ohio-2710 (6th Dist. Sandusky App. No. S-22-017); Kennedy, C.J., concurring; Donnelly, J., dissenting
- State v. Reddick, Ohio Supreme Court Case Announcements, Sept. 5, 2023 (2023-Ohio-3095), declining jurisdiction over 2023-Ohio-765 (11th Dist. Portage App. No. 2022-P-0039); Donnelly, J., dissenting
- Justice Michael P. Donnelly, “Sentencing by Ambush: An Insider’s Perspective on Plea Bargaining Reform,” 54 Akron L. Rev. 223 (2021), discussing State v. Davis, 8th Dist. Cuyahoga No. 104574, 2018-Ohio-1147, and State v. Gwynne, 158 Ohio St.3d 279, 2019-Ohio-4761
- Ohio R. Crim. P. 11
Laura Davies is a Reporter with Ohio Court Watch.